Thursday, 26 April 2018

Yesterday it was announced
that a new
EU law on travel authorisation for non-EU citizens to visit the EU had been
agreed. This will affect millions of travellers a year, probably including British
citizens after Brexit. In fact, as a UK citizen who often travels to the
continent, it’s the first EU law on non-EU immigration that will have a direct
impact on me. The law won’t apply for
awhile, but in light of its future significant impact and some public confusion
about who it will apply to and how it works, it’s worth explaining in detail. (Update: the final version of the law was published in the EU Official Journal in September 2018).

Basics of the system

First of all, a travel authorisation is not a visa.
While it is similar to a short-term travel visa in the sense that it is a process
for deciding in advance whether a person can enter the territory, it will be much
simpler and less costly to apply, and be valid for much longer.

The second key issue is: which countries are covered? This
has two dimensions: the countries which will apply the travel authorisation law
and the countries whose citizens will be subject to travel authorisation.

Taking these points in turn, the countries which will apply the travel
authorisation law are the countries fully applying the Schengen
system. This means all the EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia –
although those States all except the UK and Ireland are obliged to take part in
Schengen eventually. It also means
non-EU countries associated with Schengen: Norway, Iceland, Liechtenstein and
Switzerland.

As for the countries whose citizens will be subject to travel authorisation,
that’s all non-EU countries which are a) not subject to a visa obligation
for their citizens to visit the EU and b) do not have a free movement
arrangement with the EU. So it follows that the new travel authorisation
law will apply to British citizens
who visit the EU after Brexit – unless they are visiting Ireland or the
other EU countries not yet fully applying the Schengen rules. As an exception,
though, the law will not apply (even if the new system is ready) to the UK
during the post-Brexit transition period, because (as discussed here)
it will be applying free movement with the EU during that time. (Despite the weird claim in one newspaper,
this has nothing to do with whether the UK has some form of customs union with
the eU).

This new development fits into the
broader framework of UK/EU immigration arrangements after Brexit, as I
discussed in an earlier
post. While UK citizens will very likely not be subject to short-term travel
visas (that would be inconsistent with EU visa policy on wealthy and/or nearby
countries), they will be conversely (on the basis of the law as it stands) be
subject to the new travel authorisation law and other EU border control laws as
non-EU citizens without free movement rights, including the loss of fast-track
lanes at external borders. It would be possible for the UK and EU to negotiate
a reciprocal exception to this, but that depends on the willingness of both
sides to do so. It’s not clear if the UK is interested yet, or whether the EU
would be willing to talk if it were.

It is absurd to argue that the
application of the new law to UK citizens is a form of “punishment” by the EU.
The UK government wants the UK to be a non-EU country without a free movement
relationship, and the EU (as it stands) will therefore treat the UK like any
other non-EU country without a free movement relationship. In fact the UK will
be treated better than the many non-EU countries whose citizens are subjected to
a visa requirement. Some Leavers should apologise for previously claiming that
the likely application of the ETIAS to the UK after Brexit was “scaremongering”;
likewise some Remainers should retract their assertion that tourist visas will
definitely be required for UK citizens after Brexit. (Spoiler: neither will).

Remember, though, that the new
law is not just relevant to the UK, but also to many other non-EU countries,
including the USA, Canada, Australia, New Zealand, Japan, South Korea, Israel,
and many States in the Caribbean, Latin America and neighbouring the EU to the
east. A full list of non-visa countries can be found in Annex II to the EU
visa list Regulation.

The new law will also apply to non-EU
citizens subject to an optional visa exemption by Member States, namely re
school pupils, refugees and armed forces’ members under certain conditions,
along with non-EU family members of EU citizens who do not have residence cards
on the basis of EU free movement law.

On the other hand, it will not
apply to some other non-EU citizens: refugees
and stateless persons in a Member State; non-EU family members of EU citizens with a residence card; persons with
residence permits from a Schengen state, uniform (Schengen) visas or national
long-stay visas; nationals of European micro-states (Andorra, Monaco and San
Marino and holders of a passport issued by the Vatican State or the Holy See);
those who hold a border traffic permit subject to EU law when they travel
within the local border traffic area; those subject to the optional visa
requirement or exemption for holders of diplomatic or other official passports or
travel documents issued by international organisations or certain international
transport or emergency workers; those subject to the optional visa requirement because
they are carrying out paid work; and non-EU citizens moving between Member
States on the basis of EU law on intra-corporate transferees (discussed here)
or on students and researchers (discussed here).

For UK citizens living in the EU27
states before Brexit, their rights on the basis of the Brexit withdrawal
agreement (discussed here)
will need to be evidenced by a residence permit from a Schengen states if they
want to take advantage of these exemptions when coming back to the Schengen
countries.

When will the new
travel authorisation system apply?

The new Regulation will likely be
formally adopted in a couple of months’ time. While it will technically come into force
twenty days after its formal adoption, the database needed to run the system take
time to set up. So it will only begin operations when the Commission decides
that other proposed EU laws on the interoperability of databases have entered
into force, various implementing measures have been adopted, and there has been
a successful comprehensive test of the system. It’s too early to say when this
will be, but experience shows that several years may be necessary.

For the first six months after
the system starts operations, its use will be optional and there will be no
need to have a travel authorisation. The Commission may extend that for a
further period of six months, renewable once. After that point, there will be a
six months’ grace period when border guards may exceptionally allow people to
enter without a valid travel authorisation. The Commission may extend this for
another six months.

Process for the
applicant

An applicant for travel
authorisation must apply via a website or a mobile app “sufficiently in advance
of any intended travel”, or, if they are already present in a Schengen State,
“before the expiry of the validity of the travel authorisation”. If they
already have a valid travel authorisation, they can apply for the next such
authorisation as from 120 days (about four months) before it expires.The system must “automatically inform”
holders of travel authorisation via e-mail about the upcoming expiry of their
authorisation, and the prospect of applying for a new one. Applications won’t
have to be lodged by the potential traveller, but can instead be lodged by a
company authorised to act on his or her behalf.

The application form has to
include the applicant’s name, date of birth, place and country of birth, sex,
nationality, parents’ names, travel document information, home address, e-mail
and phone number, education level, occupation (which may be followed by a
further request for information about an employer or where a student is
studying), and Member State of first intended stay. Applicants must also answer
whether they have: been convicted of a specified criminal offence over the last
ten years (or the last twenty years, in the case of terrorist offences), and in
which country; or “stayed in a specific war or conflict zone over the previous
ten years and the reasons for the stay”; or been required to leave the
territory of a Member State or any country on the EU visa whitelist over the
last ten years.If they answer yes to
any of those questions, they will have to answer a further set of questions
(yet to be determined). Each application will cost €7, but that fee will be
waived for those under 18 or over 70, and applicants who are family members of
EU citizens.

After the application is made,
the data will be compared automatically to data in databases including the Schengen
Information System (SIS), the planned Entry/Exit System (EES), the Visa
Information System (VIS), the Eurodac database (which concerns asylum seekers
and some irregular migrants), Europol data, and Interpol databases. The purpose
of these checks is to determine whether: the travel document has been stolen,
lost, misappropriated or invalidated; the person is listed in the SIS to be
denied entry or wanted for arrest for extradition or as a missing person,
potential witness or person subject to surveillance; a travel authorisation has
been refused, revoked or annulled or there is a refusal based on the EES or the
VIS; the travel document matches an application with different identity data;
the applicant is a current or previous overstayer (ie did not leave on time
when the permitted period of stay expired); there are matching data in
Interpol, Europol or Eurodac files; or whether there are extradition or entry
refusal data on the parent of a minor.The application will also be checked against a watchlist and risk
indicators. A number of these rules are waived for family members of EU
citizens, in light of their rights under free movement law.

If this process does not result
in any “hit”, then the travel authorisation will be issued automatically. If
there is a hit, then the application is further examined to see if the hit was
false. If it was genuine, then national authorities must examine the
application further and decide on whether to issue the travel authorisation. This
might entail asking the applicant further questions or consulting other Member
States or Europol. The deadline for deciding on each application is 96 hours
(four days), unless further information or an interview is required; in that
case the deadline is extended to 96 hours after the further information is
provided, or 48 hours after the interview is held.

When assessing applications, there
will be profiling of applicants based on screening rules to be determined, which
will be based on statistics indicating: “abnormal rates of overstayers and
refusals of entry for a specific group of travellers”; “abnormal rates of
refusals of travel authorisations due to a security, illegal immigration or
high epidemic risk associated with a specific group of travellers”; “correlations
between information collected through the application form and overstay or
refusals of entry”; “specific security risk indicators or threats identified by”
or “abnormal rates of overstayers and refusals of entry for a specific group of
travellers” concerning a Member State, which must be “substantiated by factual
and evidence-based elements”; or “information concerning specific high epidemic
risks provided by Member States” along with “epidemiological surveillance
information and risk assessments” produced by the WHO or the EU disease
prevention agency.

These rules will be set out in
Commission acts implemented by Frontex, which shall then “establish the
specific risk indicators” based on: age range, sex, nationality; country and
city of residence; level of education; and current occupation. However, these “specific
risk indicators” must be “targeted and proportionate”, never based solely on sex
or age nor on “information revealing a person’s colour, race, ethnic or social
origin, genetic features, language, political or any other opinion, religion or
philosophical belief, trade union membership, membership of a national
minority, property, birth, disability or sexual orientation”.

Furthermore, there will be a “watchlist”
of those “who are suspected of having committed or taken part in a terrorist
offence or other serious criminal offence” or of those who may commit such
offences in future, where there are “factual indications or reasonable grounds,
based on an overall assessment of a person”, to believe that. (Note that “serious
criminal offences” is defined as the 32 crimes listed in the EU law
establishing the European Arrest Warrant, if they could be punished by at least
three years in jail). The watchlist information shall be entered by either
Europol or Member States, and shall consist of names, birth date, travel
documents, home address, e-mail address, phone number, information on an
organisation, or IP address. Listings in the watchlist cannot duplicate an
alert that has already been issued in the SIS. The listings must be reviewed at
least once a year.

Granting or refusing a travel authorisation

If there are “no factual
indications or reasonable grounds based on factual indications” to believe that
the applicant “poses a security, illegal immigration or high epidemic risk”,
then a travel authorisation will have to be issued. It will be possible to
issue an authorisation but with a flag to recommend that the traveller is
interviewed by border guards at the border. The travel authorisation will be
valid for three years, unless the travel document expires before that date.

Conversely, a travel
authorisation application will have to be refused if the applicant: “used a
travel document which is reported as lost, stolen, misappropriated or
invalidated in the SIS”; “poses a security risk”; “poses an illegal immigration
risk”; “poses a high epidemic risk”; is subject to a SIS alert to refuse entry;
failed to reply to a request for additional information or attend an interview.
It will also have to be refused if “there are reasonable and serious doubts as
to the authenticity of the data, the reliability of the statements made by the
applicant, the supporting documents provided by the applicant or the veracity
of their contents”.

In that case, applicants will
have the right to appeal, against the Member State that decided on their application
in accordance with its national law. Furthermore, a previous refusal will not
necessarily lead to a refusal of the next application, which will have to be
considered separately on its own merits.

In either case, the applicant
must be notified of either the positive or negative decision on the application,
with information on either the conditions for travel to the EU or the grounds
for refusal and information on the appeal process. Details of the decision will
be added to the ETIAS database.

It will be possible to annul or
revoke a travel authorisation. The basis for annulment is that “it becomes
evident that the conditions for issuing it were not met at the time it was
issued”, while an authorisation must be revoked “where it becomes evident that
the conditions for issuing it are no longer met”. In either case, the decision
must be taken on the basis of the usual grounds for refusal, the applicant must
be notified of the grounds, there will again be an appeal right for the person
concerned, and details will be added to the ETIAS database. An applicant may
also ask for the authorisation to be revoked.

As with Schengen visas, there
will be a possibility to issue a a travel authorisation with limited
territorial validity, “when that Member State considers it necessary on
humanitarian grounds in accordance with national law, for reasons of national
interest or because of international obligations” even if the travel authorisation
has not yet finished or has been refused, annulled or revoked. It will only be
valid for 90 days, not the usual three years.

Given that transport companies
have obligations if they carry passengers without immigration authorisation,
the new law will give them the power to check the ETIAS database, to see if
their passengers who need it have a valid travel authorisation. The database
will also be available to border guards, to immigration authorities, national
law enforcement bodies and Europol.

The ETIAS data will be kept in the
database for the period of validity if an authorisation is granted, or five
years from the last failed application if not. An applicant can consent to
another three years of retaining the data in order to facilitate later
applications. The general EU rules on data protection will apply to the processing
of personal data in the system. Data cannot be transferred to non-EU countries,
except to Interpol or for the purposes of facilitation of expulsion or where
there is an imminent security risk, subject to detailed conditions.

Comments

The new law will, if applied as
planned, become a regular feature in the lives of those travelling to the EU,
from the UK and many other States besides. For those who spend ten or twenty
minutes making an application every three years and get travel authorisation after
paying a €7 fee, there is limited hassle factor. For those who fail to apply on time, or whose
application is rejected, the hassle will be vastly greater, particularly if the
refusal complicates their family or professional life.

On that point, the grounds for refusal are rather murky. The refusal of travel authorisation due to prior convictions
for serious crimes, well-evidenced security risks or prior significant breaches
of immigration law is reasonable, but the new law also refers vaguely to
several levels of algorithms and profiling which have yet to be developed. Recent events have called into question such
use of “big data” more than ever; and “computer says nah” is not a good enough
answer to an applicant, in particular for citizens of the UK or other
neighbouring States who are more likely to have strong personal and
professional links with the EU.

Barnard & Peers: chapter 26,
chapter 27

Photo credit: GTP headlines

*This blog post was supported by
an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Tuesday, 24 April 2018

What happens if an asylum seeker
faces severe mental health problems that cannot be treated in the country of
origin? Today’s judgment
of the ECJ in the MP case, following a
reference
from the UK Supreme Court, goes some way towards answering this question.

Background

The issue what we might call “medical
cases” for asylum first of all arose before the European Court of Human Rights.
In a series of judgments, that Court clarified whether the ban on torture or
inhuman or degrading treatment, set out in Article 3 of the European Convention
on Human Rights (ECHR), prevented people from being sent back to a country
where there was no effective medical care. Essentially, it ruled that such an argument
could only be successful in highly exceptional cases, in particular where the
person concerned was critically ill and close to death.

However, while these judgments addressed
the question of non-removal for persons in such serious conditions, they did
not rule on the issue of the status of asylum, or other types of migration
status, for the persons concerned. This issue was the subject of two linked ECJ
judgments (M’Bodj and Abdida) in 2014, which I discussed here.
In short, the ECJ said that the persons suffering from severe health problems
could not invoke a right to “subsidiary protection” on the basis of the EU’s qualification
Directive, even though one of the grounds for such protection was facing a “real
risk” of torture or inhuman or degrading treatment in the country of origin. That
was because subsidiary protection was only intended for cases where the harm
was directly caused by humans.

So do “medical cases” only have
the right to non-removal on the basis of Article 3 ECHR? Not quite; because the
ECJ also said that the EU’s Returns
Directive, which governs the position of irregular migrants, could be
relevant. In an ambitious interpretation of that Directive, the Court ruled
that it could be invoked to prevent
removals in “medical cases”, including the suspensive effect of an appeal
against removal; moreover the Directive conferred a right to medical care and
social assistance for the persons concerned in such cases.

Subsequently, at the end of 2016,
the European Court of Human Rights revisited its case law on “medical cases”,
lowering the very high threshold that had previously applied before individuals
could invoke Article 3 ECHR. In Paposhvili v Belgium (discussed here),
it extended that case law also to cover cases of:

removal of a
seriously ill person in which substantial grounds have been shown for believing
that he or she, although not at imminent risk of dying, would face a real risk,
on account of the absence of appropriate treatment in the receiving country or
the lack of access to such treatment, of being exposed to
a serious, rapid and irreversible decline in his or her state of
health resulting in intense suffering or to a significant reduction in
life expectancy.

It should be noted that while the
“first phase” EU qualification Directive
(which includes the same definition of “subsidiary protection” as the 2011
version) applies to the UK and Ireland, the Returns Directive does not.

Judgment

The ECJ began by stating that in
order to invoke a claim to subsidiary protection on grounds of torture, it was
necessary to show that such treatment would occur in the country of origin in future.
While MP had suffered torture in Sri Lanka in the past, that was “not in itself sufficient justification for him to
be eligible for subsidiary protection when there is no longer a real risk that
such torture will be repeated if he is returned to that country”. Although the
qualification Directive states that past serious harm “is a serious indication”
there is a real risk of suffering such harm in future, “that does not apply
where there are good reasons for believing that the serious harm previously
suffered will not be repeated or continue”.

The Court then turned to MP’s
health issues, noting that he “presently continues to suffer severe
psychological after-effects resulting from the torture” and that “according to
duly substantiated medical evidence, those after-effects would be substantially
aggravated and lead to a serious risk of him committing suicide if he were
returned to his country of origin”. It stated that this provision of the
qualification Directive “must be interpreted and applied” consistently with Article 4
of the EU
Charter of Fundamental Rights, which set out an “absolute” right to be free
from torture or other inhuman or degrading treatment. This Charter right
corresponded to Article 3 ECHR, so “the meaning and scope of the rights are the
same”, as set out in Article 52(3) of the Charter. So the ECJ followed the case law of the ECtHR
on Article 3 ECHR, referring specifically to the revised test on “medical cases”
set out in Paposhvili, and adding
that when applying Article 4 of the Charter,“particular attention must be paid to the specific vulnerabilities of
persons whose psychological suffering, which is likely to be exacerbated in the
event of their removal, is a consequence of torture or inhuman or degrading
treatment in their country of origin”.

It followed that the Charter,
interpreted in light of the ECHR, “preclude[s] a Member State from expelling a
third country national where such expulsion would, in essence, result in
significant and permanent deterioration of that person’s mental health
disorders, particularly where, as in the present case, such deterioration would
endanger his life.” It also recalled its previous ruling on “medical cases” and
the Returns Directive.

But since the courts in the UK
had already ruled out MP’s removal, the non-removal point was not relevant.
Rather the issue was whether MP is entitled to subsidiary protection. Here the ECJ
recalled its prior ruling that “medical cases” were not normally entitled to
subsidiary protection, but noted that M’Bodj
concerned a victim of assault in the host Member State, whereas MP was tortured
in the country of origin and the after-effects would be exacerbated in the
event of return. Both of these factors are relevant when interpreting the
qualification Directive; but “such substantial aggravation cannot, in itself,
be regarded as inhuman or degrading treatment inflicted on that third country
national in his country of origin, within the meaning of” the Directive.

What about the lack of medical
care for after-effects of torture in the country of origin? The Court
reiterated its position that a right to subsidiary protection “cannot simply be
the result of general shortcomings in the health system of the country of
origin”, and that “deterioration in the health of a third country national who
is suffering from a serious illness, as a result of there being no appropriate
treatment in his country of origin, is not sufficient, unless that third
country national is intentionally deprived of health care, to warrant that
person being granted subsidiary protection”.

But on this point, it was crucial
that this was not an “ordinary” example of a “medical case”, but one deriving
from torture. The preamble to the qualification refers to taking into account
international human rights law considering the subsidiary protection definition;
and so the ECJ interpreted the UN
Convention Against Torture (UNCAT) for the first time in its case law. In
particular, the Court examined Article 14 of that Convention, which gives
torture victims a right to redress and rehabilitation.

Overall, the Court insisted on a separation
between UNCAT and refugee law, by analogy with the distinction between refugee
law and the international law of armed conflict (the Geneva Conventions) which
it had previously insisted upon in its judgment in Diakité.
This was because the UNCAT system and refugee law pursue different purposes. So
it followed that:

…it is not possible, without
disregarding the distinct areas covered by those two regimes, for a third
country national in a situation such as that of MP to be eligible for
subsidiary protection as a result of every violation, by his State of origin,
of Article 14 of the Convention against Torture.

So not every violation of Article 14 of UNCAT leads to subsidiary
protection. But that implies that some
violations do. The Court went on to clarify:

It is therefore
for the national court to ascertain, in the light of all current and relevant
information, in particular reports by international organisations and
non-governmental human rights organisations, whether, in the present case, MP
is likely, if returned to his country of origin, to face a risk of being
intentionally deprived of appropriate care for the physical and mental
after-effects resulting from the torture he was subjected to by the authorities
of that country. That will be the case, inter alia, if, in circumstances where,
as in the main proceedings, a third country national is at risk of committing
suicide because of the trauma resulting from the torture he was subjected to by
the authorities of his country of origin, it is clear that those authorities,
notwithstanding their obligation under Article 14 of the Convention
against Torture, are not prepared to provide for his rehabilitation. There will
also be such a risk if it is apparent that the authorities of that country have
adopted a discriminatory policy as regards access to health care, thus making
it more difficult for certain ethnic groups or certain groups of individuals,
of which MP forms part, to obtain access to appropriate care for the physical
and mental after-effects of the torture perpetrated by those authorities.

So there are two cases where
subsidiary protection would apply, due to intentional deprivation of care: the
authorities are “not prepared” to fulfil their UNCAT obligations of
rehabilitation to a person at risk of suicide following from torture suffered
in that country; or there is discriminatory policy “making it more difficult” for
certain groups to obtain such treatment. These criteria are non-exhaustive (“inter
alia”). The evidence to be considered to this end is “all current and relevant
information, in particular reports by international organisations and
non-governmental human rights organisations”. Again, the sources of evidence
are non-exhaustive (“in particular”).

Comments

At first sight, the Court’s
judgment sticks to the framework developed in its prior case law: there is no
right to subsidiary protection in “medical cases”, except where care is
deliberately refused. But look closely, and it’s clear that the Court has developed
that case law in important ways in today’s judgment.

First of all, the definition of “medical
cases” is now wider, since the Court explicitly adopts the revised interpretation
of Article 3 ECHR from recent ECtHR case law. Secondly, in torture cases, the
Court has elaborated what factors to consider to determine if inadequate health
care would be intentionally withheld in the country of origin. If the asylum
seeker is suicidal due to the after-effects of torture carried out in that
country, then if that country is either “not prepared” to fulfil UNCAT
obligations of rehabilitation to such persons or has a discriminatory policy “making
it more difficult” for certain groups to obtain care would amount to an “intentional”
deprivation of health care, there is a right to subsidiary protection. The
first of these grounds is unique to torture victims, but the second ground
should arguably be relevant to any “medical cases”.

Thirdly, the Court has fleshed
out the back-up obligation of non-removal for “medical cases” even in the event
that subsidiary protection is not granted, insisting that it is an EU law
obligation based on the Charter, alongside its prior ruling that the Returns
Directive rules it out. This is particularly relevant for the UK and Ireland,
given that they are not covered by the Returns Directive. In fact it is not
obvious at first sight how EU law – and therefore the Charter – applies in
those countries to such cases, if the persons concerned have no right to subsidiary
protection. Arguably the link to the grounds for subsidiary protection set out
in the qualification Directive is sufficient; but the Court should have spelled
this out.

In the Member States bound by the
Returns Directive, the finding that the Charter applies to prevent such removal
simplifies the process of guaranteeing the non-removal of “medical cases”.
Furthermore, it should be recalled that the case law on that Directive
guarantees health care and medical assistance.

Overall, then, today’s judgment has
gone some way to ensuring greater protection, where necessary, for the most vulnerable
migrants: torture victims and the terminally ill.

Thursday, 19 April 2018

There have been numerous reports
of Windrush Generation Commonwealth citizens being denied
health care, detained,
losing
jobs and threats
of deportation. Nick
Nason describes the Windrush Generation as Commonwealth citizens from the
West Indies who were invited to the UK after WWII to address the shortage of
workers at the time. There was a time when West Indians enjoyed total
freedom of movement. Nason notes
that s.2(2)(b) of the Commonwealth
Immigrants Act 1962 exempted from immigration controls those who arrived
with their parents and were under 16. And this is still true for children who
arrived prior to 1 January 1973, as Nason puts
it, they are ‘in the UK legally.’

The Home Office then relied
upon data protection law to justify deletion by arguing that keeping personal
data for longer than necessary was in breach of data protection principles.
More specifically, Robert Peston tweeted that
the Home Office relied upon the Fourth and Fifth data protection Principles
found in Schedule
1 of the Data Protection Act 1998 (DPA 1998).

The actions of the Home Office in
relation to the destruction of personal data does not just have implications with
regards to the DPA 1998 but also under the European
Convention on Human Rights (ECHR), particularly Article 8 which provides
that:

1.Everyone
has the right to respect for his private and family life, his home and his
correspondence.

2.There
shall be no interference by a public authority with the exercise of this right
except such as in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others.

According to the European Court
of Human Rights (ECtHR) Grand Chamber (GC) in S and Marper
(ECHR, 4 December 2008) the ‘protection of personal data is of fundamental
importance to a person’s enjoyment of his or her right to respect for private
and family life, as guaranteed by Article 8 of the Convention’ [103]. The mere
storage of personal data interferes with Article 8 [67]. The GC continued that ‘domestic
law must afford appropriate safeguards to prevent any such use of personal data
as may be inconsistent’ with Article 8 [103]. The Home Office’s position on not
storing personal data for longer than is necessary is consistent with the
ECtHR’s approach [ibid], but this would be classed as subsequent [67, 121] use
and thus is still an Article 8 issue.

The first requirement under
Article 8 is whether the deletion of personal data was ‘in accordance with the
law.’ This requires there to be some basis in domestic law
[193]. One could argue the DPA 1998 itself provides the domestic law basis for
deletion, but the ECtHR has previously held that it does not
have to assess ‘the quality of the applicable data protection framework in the
abstract and must rather confine itself as far as possible to examining the
particular consequences of application of its provisions in the case before it’
[81]. This is due to the fact that reliance on the DPA 1998 does not guarantee an action to be
‘in accordance with the law’ [207]. The ECtHR has stressed that applicable laws
must provide:

[C]lear,
detailed rules governing the scope and application of the relevant measures; as
well as minimum safeguards concerning, inter alia, duration, storage, usage,
access of third parties, procedures for preserving the integrity and
confidentiality of data and procedures for their destruction, thus providing
sufficient guarantees against the risk of abuse and arbitrariness at each stage
of its processing [75].

Therefore, the legal basis for
the destruction of personal data in the context to which the Home Office relies
becomes severely weakened. The DPA 1998 does not define the scope and
application with clear, detailed rules as to when the Home Office is entitled
to delete personal data, nor does it provide procedures for said destruction. The
arbitrariness of the measure is apparent when it is clear that the Home Office
deleted all said personal data en masse.

Moreover, even if one were to
consider the DPA 1998 as the correct legal basis that is sufficient in ECHR
terms, this does not answer the question as to why the Fourth Principle was
used in this manner. The Home Office are essentially arguing that personal data
held on Windrush Generation individuals were inaccurate, without actually
taking reasonable steps to ensure the accuracy of said data in contravention of
Schedule 1, Part II (7)(a) of the DPA 1998. When the domestic authorities do
not even observe their own law, this would also violate Article 8 [45-9]

The lawful basis in this context
is strongly linked to whether a measure satisfies the ‘quality of the law’ in
which a law should be accessible
to the person concerned and foreseeable to its effects [50]. This is
usually satisfied when a law is published [52-3]. However
it has been argued that the vagueness of the DPA 1998 provides an insufficient
legal basis for the destruction of personal data in this context. In arguing
so, it cannot be said the law is accessible, because there is no law to access,
which in and of itself would violate
Article 8 [69-70].

[W]ith
sufficient precision to enable the individual – if need be with appropriate
advice – to regulate his conduct. For domestic law to meet these requirements,
it must afford adequate legal protection against arbitrariness and accordingly
indicate with sufficient clarity the scope of discretion conferred on the
competent authorities and the manner of its exercise [95].

The level of precision ‘depends to a
considerable degree on the content of the instrument in question, the field it
is designed to cover and the number and status of those to whom it is addressed’
[96]. The DPA 1998 was designed to cover the protection of (sensitive) personal
data, but not specifically in the immigration context, thus its Principles are
not precise [98]. The
DPA 1998 would not indicate to any Windrush Generation individual as to when or
under what circumstances their personal data may be deleted by the Home Office,
thus not providing sufficient clarify on the scope of their discretion.

This discussion on the
unlawfulness of the Home Office’s reliance could have stopped at the end of the
last paragraph, but it is important to consider the case of Kurić and others v Slovenia (ECHR, 13 July 2010) as it shares
similarities with the Windrush Generation scandal. The applicants in this case
complained before the ECtHR that the erasure of their names from the Register
of Permanent Residents made them aliens overnight which denied them ‘civil,
political, social and economic rights’ [319].

The applicants had been living in
Slovenia for years, and most of them decades, some were even born there [356]. The
applicants did not enter Slovenia as immigrants but as settled citizens [357].
Moreover, the applicants had a stronger residence status than long-term
migrants and those seeking to enter or remain [357]. Although not identical,
the erasure of landing cards made it more difficult for Windrush Generation individuals
to prove they had a right to live in the UK, and due to this lack of proof they
could be denied healthcare, jobs, bank accounts etc.

In that case, the ECtHR
reiterated previous case law in that Article 8 is interfered with when the ‘persons
concerned possess strong personal or family ties in the host country which are
liable to be seriously affected by application of the measure in question’
[351]. They continued that the right to establish and develop relationships,
embracing social identity, having social ties with the community all fall
within the meaning of Article 8 [352]. Moreover, Article 8 is interfered with
when one faces expulsion and having their citizenship arbitrarily denied
[352-3]. Finally, the UK Government has positive obligations to respect Article
8 [354].

Due to the cumulative failings of
Slovenia, the ECtHR concluded there was a violation of Article 8 [376]. The
ECtHR did not decide whether the Article 8 violation was due to the measures
not being ‘in accordance with the law’ pursued a legitimate aim or was
‘necessary in a democratic society,’ so the same approach will be taken to
argue that in the cumulative, Article 8 has been violated. When one considers
that landing cards had been destroyed arbitrarily in 2010, the Home Office claimed
these had no impact on the rights of the Windrush Generation. This claim is contested
by two Home Office whistle blowers arguing that the landing cards had been a
useful resource. The whistle blower’s account is supported by the Border Force
where its notes state that ‘Information
from a landing card may be used by an entry clearance officer in making a
decision on a visa application.’ Destroying landing cards allowed Home
Office staff to tell those concerned that they had no
record of arrival dates which would lead to the denial of services and at
worst, deportation.

Moreover, citing data protection
law as a reason for the destruction of personal data appears cynical
due to the amount of personal data that is kept anyway and the fact that the
same Government is seeking to create an immigration exemption in the new Data
Protection Bill (Schedule 2, Part 1, (4). The Home Office also explained
that it considers alternative
evidence such as tax records, utility bills and tenancy agreements as
evidence of ongoing residency. However, if one can be denied work, have bank
accounts frozen and be denied tenancy, then this evidence could also be
difficult to provide. The cumulative effect of denial of services to the threat
of (or actual) deportation, the deletion of flying cards and the spurious
reasoning behind it would amount to a violation of Article 8.

The racist elephant in the room

Nason asked
whether the overt racism from the 1960s-80s has simply been replaced ‘by a more
insidious, state-endorsed hostility in the name of immigration control.’ A
group of NGOs published a report
on the ‘hostile environment’ noting that its very nature is discriminatory and
thus encourages discriminatory or even racist behaviour. Former Home Office
employees detail
how the ‘hostile environment’ changed the attitude of staff to the point where
they enjoyed catching out Windrush individuals without evidence. James Moore argues
that this is what happens when you let dog-whistle racism go mainstream.

Article 14 of the ECHR details
how the enjoyment of rights contained in the ECHR must be protected in a
non-discriminatory manner. The grounds for discrimination are non-exhaustive
but include race, colour, national or social origin and birth. Any one of these
can be relevant to the Windrush Generation. Article 14 only works in
combination with another substantive Convention Right, in this instance Article 8 [84]. Article 14
requires a difference in
treatment to those in an analogous or similar situation [66]. The ECtHR
have maintained that:

[A] difference
in treatment may take the form of disproportionately prejudicial effects of a
general policy or measure which, though couched in neutral terms, discriminates
against a group…may amount to “indirect discrimination”, which does not
necessarily require a discriminatory intent [184].

The Windrush Generation have as
much right to be here as any other UK citizen, yet they are the ones that a
targeted under the ‘hostile environment.’ Given that the Home Office destroyed
landing cards, removed key protections that could have avoided this. One could
argue the actions of the UK Government are more than just indirect
discrimination because the discriminatory intent arises for the poor reasoning
for destruction of flying cards to the lack of reasoning for removing key
protections. The Government has no objective reasonable justification for this
difference in treatment and thus amounts to discrimination [196]. Moreover, the
Windrush Generation are being treated as though they are immigrants. This
engages a different type of discrimination issue under Article 14, a Thlimennos discrimination
which notes that:

The right not
to be discriminated against in the enjoyment of the rights guaranteed under the
Convention is also violated when States without an objective and reasonable
justification fail to treat differently persons whose situations are
significantly different [44].

This post has highlighted that
the dubious reasoning as to why the Home Office destroyed crucial information
that could have helped prevent some of the tragedies of the Windrush Generation
is flawed, logically and legally. Not only is it flawed, reliance on data
protection grounds in ECHR terms would amount to using Article 8 as a shield,
and for the UK Government to do so would raise serious questions regarding
Article 17 (the abuse of rights). Not only is the Home Office’s actions and
reasoning in violation of Article 8, it violates Article 8 on the ground of
defending it. There is a bigger issue which highlights the resurfacing of
racism and discrimination in a new form which violates Article 8 in conjunction
with Article 14. The ‘hostile environment’ has provided a platform and has
legalised discrimination and racism, the destruction of landing cards in 2010
can be seen as the first steps towards this, and the removal of key protections
for the Windrush Generation in the 2014 Act is no accident either. The ‘hostile
environment’ is the problem and the recent outrages shows that there are ‘resources
of hope, but time is running out – we are at five minutes to midnight.’

Wednesday, 18 April 2018

The Court of
Justice has issued its first major ruling
on the reconciliation of the autonomy rights of religious organisations with
the right of employees (or potential employees) of such organisations to be
free of discrimination.

In 2012 Vera
Egenberger applied for a fixed term post advertised by the Evangelisches Werk
für Diakonie und Entwicklung, which is a body associated with the Evangelische
Kirche in Deutschland (a German Protestant church). The post advertised
sought a person who could prepare a report on Germany’s compliance with the
United Nations International Convention
on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had
significant experience in this area and applied for the post. However, there
was a problem. Ms. Egenberger is a person who does not have a religious faith
and the relevant advert included the following statement:

‘We require membership of a Protestant church, or of a church which
is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland
(Cooperative of Christian Churches in Germany), and identification with the
welfare mission. Please state your membership in your curriculum vitae.’

Ms. Egenberger
was not called for interview. She took a case in the German courts alleging
discrimination on grounds of religion.

As
discrimination in employment on grounds of religion is regulated by EU law, in
the form of Directive
2000/78 (which also bans discrimination on grounds of disability, age or
sexual orientation in employment), when the case came before the Bundesarbeitsgericht
(Federal Labour Court) it decided to make a reference to the Court of Justice
to clarify the interpretation of EU law. The key issue in the reference was
whether the scope of the exemption from the duty not to discriminate on grounds
of religion or belief granted by German law to religious organisations was
compatible with Directive 2000/78.

The issue of
exemptions from the prohibition on discrimination on grounds of religion for
religious employers is addressed by Article 4(2) of the Directive which states:

‘…. in the case of occupational activities within churches and other
public or private organisations the ethos of which is based on religion or
belief, a difference of treatment based on a person's religion or belief shall
not constitute discrimination where, by reason of the nature of these
activities or of the context in which they are carried out, a person's religion
or belief constitute a genuine, legitimate and justified occupational
requirement, having regard to the organisation's ethos. This difference of
treatment shall be implemented taking account of Member States' constitutional
provisions and principles, as well as the general principles of Community law,
and should not justify discrimination on another ground.’ (emphasis added).

The relevant
German law implementing the directive provided that:

‘….a difference in treatment based on religion or belief shall also
be admitted in the case of employment by religious societies, by institutions
affiliated therewith, regardless of legal form, or by associations whose
purpose is to foster a religion or belief in the community, where a given
religion or belief constitutes a justified occupational requirement, having
regard to the employer’s own perception, in view of the employer’s right of
autonomy or by reason of the nature of its activities.’ (paragraph 9(1) of the
Allgemeine Gleichbehandlungsgesetz, emphasis added).

This
legislation, has been interpreted in the light of the German constitutional
guarantee that states:

‘Religious societies shall regulate and administer their affairs
independently within the limits of the law that applies to all. They shall
confer their offices without the involvement of central government or local
authorities.’ (Grundgesetz Article 140).

This has meant
that the consistent approach of the German courts has been that the decision as
to whether a particular role within a religious organization needs to be
limited to those of a particular faith was for the religious employer to take.
The role of the courts has been limited to plausibility review, on the basis of
a religion’s self-conception defined by belief.

The national
court harboured doubts as to whether the approach of German law in allowing the
religious employer to determine for itself, subject only to plausibility review
by the courts, whether its beliefs required a particular role to be reserved to
those of a particular faith, was compatible with the directive and therefore
made a reference to the Court of Justice under Article 267.

The Ruling: A More Balanced Approach Needed

The Court of
Justice’s ruling made it clear that German law had gone too far by allowing
such a wide scope for religious employers to determine for themselves whether a
particular job could be reserved to those of a particular faith.

It noted that
Article 4(2) of the Directive allowed the discrimination on grounds of religion
only if having regard to the nature of the activity concerned or the context in
which it is carried out, ‘religion or belief constitute[s] a genuine,
legitimate and justified occupational requirement, having regard to the
organisation’s ethos’ and concluded that:

‘if review of compliance with those criteria were, in the event of
doubt as to that compliance, the task not of an independent authority such as a
national court but of the church or organisation intending to practise a
difference of treatment on grounds of religion or belief, [this provision of
the Directive] would be deprived of effect.’

Interestingly,
although the employer had cited both the guarantee of freedom of religion or
belief (Article 10 of the Charter of Fundamental Rights) and Article 17 of the
Treaty on the Functioning of the European Union, which provides that the Union
‘The Union respects and does not prejudice the status under national law of
churches and religious associations or communities in the Member States’, the
Court also relied heavily on constitutional principles to bolster its
conclusion that excessive leeway had been granted to religious employers by
German law.

The Court noted
that Directive 2000/78 was merely a ‘specific expression, in the field covered
by it, of the general prohibition of discrimination laid down in
Article 21 of the Charter’ (which sets out a general ban on
discrimination). It also noted that that when an individual establishes before
a national court facts from which it may be presumed that there has been direct
or indirect discrimination then, under Article 10 of the Directive, it is for
the respondent to prove that there has been no breach of that principle. Thus,
the need under Article 47 of the Charter to provide effective judicial
protection of EU law rights meant that restricting the ability of the national
courts to review the decision of an employer to impose a discriminatory
requirement would be contrary to EU law.

Next, the Court held
that the objective of Article 4(2) of the Directive was to ensure “a fair
balance” between the autonomy rights of religious organisations and the right
of workers to be free from discrimination. The Directive “sets out the criteria
to be taken into account in the balancing exercise” and in the event of a
dispute it must be possible for the balancing exercise to be reviewed by a
national court. For the Court, the commitment to respecting the status of
religious organisations in Article 17 of the Treaty could not change this
conclusion.

That article’s
function was:

‘to express the neutrality of the European Union towards the
organization by the Member States of their relations with churches and
religious associations and communities […] [and] is not such as to exempt
compliance with the criteria set out in Article 4(2) of Directive 2000/78
from effective judicial review.’

Guidance on the Test to Be Applied

Having found
that the German legislation was not compatible with the Directive the Court
then had to address two further interesting issues. First, it had to give
guidance to the national court on the question of how the ‘fair balancing’
ought to be carried out and then it had to advise on how to implement the
consequences of its finding in the case.

In relation to
how to carry out the ‘fair balancing’ the Court had to walk a tightrope. It
acknowledged that under ECHR case law, states are precluded from assessing the
legitimacy of the beliefs of a religious organization. However, it also had to
ensure that the imposition of an occupational requirement relating to religion
or belief was, in the words of the Directive ‘genuine, legitimate and
justified, having regard to [the] ethos [of the religious employer]’. Thus it
had to decide how to recognize the necessarily subjective requirements of the
ethos of the employer, with the seemingly objective requirements of the
‘genuine, legitimate and justified’ test.

The Court
adopted an approach that is significantly more objective than the approach
taken in German law. It set out a test under which religious organisations must
show an ’objectively verifiable existence of a direct link between the
occupational requirement imposed by the employer and the activity concerned.’
Thus, in order to meet Article 4(2)’s requirements that the difference in
treatment on grounds of religion be ‘genuine, legitimate and justified’ the
Court held that:

‘To be considered ‘genuine’: ‘professing the religion or belief on
which the ethos of the church or organisation is founded must appear necessary
because of the importance of the occupational activity in question for the
manifestation of that ethos or the exercise by the church or organisation of
its right of autonomy.’

To be considered
‘legitimate’ it found that the national court must ‘ensure that the requirement
of professing the religion or belief on which the ethos of the church or
organisation is founded is not used to pursue an aim that has no connection
with that ethos or with the exercise by the church or organisation of its right
of autonomy.’

And to be
considered justified the CJEU set down that ‘the church or organisation
imposing the requirement is obliged to show, in the light of the factual
circumstances of the case, that the supposed risk of causing harm to its ethos
or to its right of autonomy is probable and substantial, so that imposing such
a requirement is indeed necessary.’

Finally,
although a proportionality requirement is not included in the text of Article
4(2) (and is included in other Articles of the Directive), the Court held that
as proportionality is a general principle of EU law, the exemption given by
Article 4(2) is to be read as being subject to a proportionality requirement.

Applying the Ruling

Given the
possibility of a clash between German law and the requirements of the Directive
the German court asked for guidance on how it should proceed if it proved
impossible to interpret domestic law so as to comply with the Directive
(bearing in mind the contra legem
exception in the Marleasing
line of case-law on the indirect effect of Directives; ie a national court
cannot be required to interpret national law consistently with a Directive to
the extent of ignoring the express wording of national law).

The Court seemed
to doubt that an interpretation consistent with EU law was impossible, noting
that the duty to interpret national law consistently with EU law included a
duty for national courts ‘to change their established case-law where necessary’
(referring to the DI judgment on age
discrimination, discussed here).
However, it went on to say that should consistent interpretation prove
impossible then the Court should disapply national law and give effect to the
relevant EU law rights itself.

It justified
this position on the basis that Directive 2000/78 did not establish the right
to equal treatment. Rather it sets out a framework for combatting discrimination
on various grounds. The right to equal treatment is, the Court held, a general
principle of law and is enshrined in Article 21 of the Charter. Given that
Article 47 of the Charter requires that adequate judicial protection be given
to such rights, national courts have to ensure ‘the judicial protection
deriving for individuals from Articles 21 and 47 of the Charter and to
guarantee the full effectiveness of those articles by disapplying if need be
any contrary provision of national law.’ This develops earlier case law on the
issue of when the Charter itself does (and does not) have direct effect, in
particular the AMS case discussed here;
and it confirms the UK case law on the direct effect of Article 47 (Vidal-Hall and Benkharbouche, discussed here
and here).

Conclusion

The Court of
Justice has given a notably constitutionalized interpretation of the Directive
in this case. It has relied on the Charter and general principles of law to
read a proportionality test into Article 4(2) that did not appear in the text.
It has insisted on proportionality as the framework within which the ‘fair
balancing’ of the autonomy rights of religious employers and equal treatment
rights of employees must take place.

This approach is
in tension with recent trends in the caselaw of the Strasbourg Court. In cases
such asFernandez Martinez v Spain,
the Court of Human Rights had moved away somewhat from the balancing of rights
seen in its earlier caselaw and had moved closer to the ‘ministerial exemption’
model used in the United States, under which religious organisations have an
absolute exemption from non-discrimination laws in respect of roles that
include religious functions. Given the strong emphasis placed on
proportionality by the EU legal order, unsurprisingly, in Egenberger, the Court of Justice has clearly come down in favour of
the balancing approach (see R. McCrea “Singing
from the Same Hymn Sheet? What the Differences between the Strasbourg and
Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination and the
Secular State” Oxford Journal of Law and Religion (2016) 5(2) 183-210, 198-99).

The Court’s
insistence that EU non-discrimination law merely codifies a self-executing (and
horizontally directly effective) constitutional general principle of
non-discrimination law represents a continuation of the controversial line of
cases beginning in Mangold
which has attracted significant criticism, including from national courts given
the potential for legal uncertainty that such an approach involves. Here, the
Court of Justice has made it clear that the EU’s constitutional commitment to
proportionality means that religious bodies may only impose discriminatory
conditions on employees when it is proportionate to do so and national courts
must be empowered to ensure religious employers do not exercise their right to
discriminate in a disproportionate way.

This is in
tension with the approach adopted by the German legislature which, in the light
of German constitutional guarantees of religious autonomy, gave very restricted
powers to the courts to second guess the decisions of religious bodies in this
way. Given that EU and German constitutional norms appear to be in tension with
each other in this way it will be interesting to see how this ruling is applied
by the national court. The German constitutional provisions on religious
autonomy go all the way back to the Weimar constitution and are taken very
seriously, though it may be an exaggeration to view them as constituting the
kind of core ‘constitutional identity’ that might trigger a refusal by the
German courts to give primacy to EU law.